Case Law Details
1. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner herein calls in question the reassessment proceedings initiated under Section 148 of the Income Tax Act, 1961, dated 21-9-2015 and the order dated 13-12-2016 disposing of the preliminary objections in response to the initiation of reassessment proceedings and thereby the final assessment order dated 20-12-2016.
2. Essential facts requisite to adjudicate the above-stated challenges are as under: –
2.1) The petitioner is an assessee for the purpose of the Income Tax Act, 1961 (for short, ‘the Act, 1961’). She filed return for the assessment period 2011-12, financial year 2010-11, on 31-3-2013 along with necessary documents in which she was served with notice under Section 148 of the Act, 1961 on 12-9-2013 stating that the Assessment Officer has reasons to believe that income has escaped assessment and she was directed to file return within 30 days of the notice period. Thereafter, fresh notices were issued under Sections 142 (1) and 143 (2) of the Act, 1961 calling for revised return and documents in support thereof respectively, as scrutiny assessment was to be conducted under Section 143 (3) read with Section 147 of the Act, 1961. Thereafter, assessment order was passed under Section 147 read with Section 143 (3) of the Act, 1961, on 31-3-2015 accepting the earlier return filed on 31-3-2013, but in the meanwhile, a reference was made to the Departmental Valuation Officer (Assistant Valuation Officer-II), Mumbai in terms of Section 55-A of the Act, 1961 in which a preliminary valuation report was furnished on 2-3-2015, but the final report was furnished only after the completion of assessment proceedings. Thereafter, the petitioner was served with second notice under Section 148 of the Act, 1961 directing her to file return within 30 days of the notice period to which a request was made by the petitioner that reasons recorded under Section 148 (2) of the Act, 1961 for reopening of the assessment / initiating reassessment proceedings, be communicated to her. The reasons recorded under Section 148 (2) of the Act, 1961 were furnished to the petitioner by memo dated 15-11-2016 to which the petitioner filed her preliminary objections. The preliminary objections were decided on 13-12-2016 and the petitioner filed this writ petition on 16-12-2016, but in the meanwhile, on 20-12-2016, final assessment order was passed. During the pendency of this writ petition, final assessment was also challenged by amending the writ petition. In the aforesaid background, the writ petition has been filed.
2.2) The respondents have filed their joint return. A preliminary objection has been raised on behalf of the respondents that the petitioner has have an efficacious alternative remedy under Section 246A of the Act, 1961 and she has to prefer an appeal against the order of reassessment before the Commissioner of Income Tax (Appeals). The Assessing Officer has exercised the power conferred by virtue of the provisions of the Income Tax Act, 1961 and has duly followed the prescribed procedure for initiation of reassessment proceedings in the case of the petitioner and, therefore, the action of the Assessing Officer cannot be held to be without jurisdiction and without authority of law. It has also been submitted that reasons have duly been assigned and objections have been disposed of by a speaking order, as such, there is sufficient material for invoking Section 147/148 of the Act, 1961 for reopening the assessment. Therefore, the writ petition against the show cause notice seeking to reopen for reassessment is not maintainable in law. Thus, the writ petition deserves to be dismissed on merit as well as on the ground of alternative remedy.
2.3) Rejoinder has been filed on behalf of the petitioner contravening the allegation made in the return.
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